A litigation friend is someone who helps a child or protected party to conduct legal proceedings. A child is defined as a person under the age of 18. A protected party is defined as someone who is a party or intended party to legal proceedings, who lacks capacity to conduct the proceedings. A person who lacks capacity is defined under the Mental Capacity Act 2005 if, in relation to a matter, at the material time they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. This article is focused on adults who lack capacity to conduct court proceedings.
A litigation friend is a complex role which is advised to be carefully considered before making any such commitment. The litigation friend must not make decisions in the case based on their own interest, but rather the interests of the protected party. A litigation friend could be required to attend court hearings, instruct solicitors and barristers, sign legal documents, make key decisions about the case and to the best of their abilities, communicate with the protected party.
family members of protected parties often act as litigation friends, such as parents, siblings, partners or children. In some cases, it may be appropriate for a protected parties legal guardian, social worker or carer to act as a litigation friend.
When must a litigation friend be appointed?
A protected party must have a litigation friend to conduct proceedings on their behalf. A party cannot make an application for a litigation friend before proceedings have started. They also cannot take any step in proceedings except issuing and serving a claim form or applying for the appointment of a litigation friend, until a litigation friend is appointed.
If at any point during the proceedings a party lacks capacity to continue the proceedings, no party can take any further steps in the proceedings without the Courts permission, until the protected party has a litigation friend.
How is a litigation friend appointed?
Without a Court order
A person who wishes to act as a litigation friend must file and serve a certificate of suitability. The certificate of suitability shall confirm that they can fairly and competently conduct proceedings on behalf of the protected party, have no interest adverse to that of the protected party and, where the protected party is a claimant, undertake to pay any costs that the claimant is ordered to pay. The certificate of suitability also confirms that the proposed litigation friend agrees to act as a litigation friend and knows or believes the person connected lacks capacity to conduct the proceedings.
A person who wishes to act as a litigation friend must serve the certificate of suitability on every party to the claim. The certificate of suitability must then be filed with the Court, along with a certificate of service.
With a Court order
Alternatively, the Court can make an order to appoint a litigation friend. An application for this request may be made by a person who wishes to be a litigation friend or a party to the proceedings, where a person makes a claim against a protected party and the protected party has no litigation friend.
The person or party must file an application notice to the Court for an order appointing a litigation friend for the protected party. An application must be supported by evidence that the proposed litigation friend can fairly and competently conduct proceedings on behalf of the protected party, has no interest adverse to that of the protected party, believes the person connected lacks capacity and, where the protected party is a claimant, undertake to pay any costs that the claimant is ordered to pay.
An application for such order must be served on every person who the claim form must be served on and also on the protected party themselves.
How does an appointment of a litigation friend cease?
Where a protected party regains or acquires capacity to conduct the proceedings, the litigation friend’s appointment continues until it is ended by Court order. Such application may be made by the protected party, the litigation friend or a party to the proceedings. An application for an order will need to be supported by evidence such as a medical report and a statement from the former protected party shall be required.
The party whose litigation friend’s appointment has ceased must serve notice on all parties stating that the appointment of their litigation friend to act has ceased, confirming whether or not they intend to carry on proceedings and giving an address for service. Where this is not done within 28 days of the appointment ceasing, the Court may stay or strike out any claim or defence raised by that party.
In certain circumstances, the Court can terminate the appointment of a litigation friend, direct that a person cannot act as a litigation friend or appoint a new litigation friend instead of an existing one.
Alternatively, a litigation friend ceases to be appointed when the court proceedings end.
If you are party to a dispute which requires a litigation friend, please contact a relevant member of our Dispute Resolution team.
Please note that the above does not constitute legal advice.
